Only a handful of off-kilter pilings sticking up in a few places above the surface of the Indian River now mark the spot where a bustling modern marina once stood. Just weeks after a hurricane onslaught of historic proportions struck the central coast of Florida here at the waterfront city of Ft. Pierce, the waters are placid, docks are being repaired, a closed tiki bar is being cleaned out and nearly all of the wrecked boats have been removed.

But the hurricanes of 2004 have left many people unsettled in more than just repairs and cleanup. Marina owners throughout Florida are struggling in a love-hate relationship with their customers. The question of whether boats damage a marina’s docks during a storm or whether the docks destroy the boats when they fail is no academic exercise. Many marina managers view boats left in their slips as a hazard and wish their customers would vacate their premises when a major storm is imminent.

Shortly after Hurricane Jeanne delivered her coupe de grace in late September, after the state had been pummeled by three previous hurricanes within weeks of each other, Florida State Sen. Ken Pruitt (R-Port St. Lucie) was quoted in local papers saying boats left in slips during a hurricane were “battering rams” that should be evacuated out of marinas.

Pruitt later told BoatU.S. that the issue of forcing boat owners to remove their boats could come up in a special session of the state legislature in December but that it was more likely to be debated when the regular 2005 session convenes. At press time, the special session was expected to be held the week of Dec. 13.

Current Florida law protects life over property by prohibiting marinas from forcing boats out once a hurricane watch or warning has been posted for that area by the National Weather Service. After 1992’s Hurricane Andrew, a comprehensive bill was passed and signed into law to address a host of emergency preparedness problems that surfaced before and after that Category 5 hurricane. Marina owners at that time wanted lawmakers to give them the right to evacuate marinas prior to a storm; BoatU.S. and many boaters objected and the law, enacted in 1994, explicitly protected citizens’ safety over property on the grounds that some boat owners would have no safe place to go or would try to “ride out” a storm on board their boats, a potentially deadly tactic. In addition, heavily populated areas such as south Florida don’t have nearly enough anchorages or hurricane holes to accommodate the thousands of boats in that area.

“Whether you have one hurricane or four, the legislature and the Florida courts have said protecting docks is not a higher priority than protecting lives,” said Jim Ellis, president of BoatU.S. “It’s simply unsafe to force boats out into deteriorating conditions just before a hurricane makes landfall. Good advance planning and preparation is what we continually stress to boat owners.”

In 1995, the law was challenged by a marina in court and the case was dismissed. A subsequent appeal upheld the dismissal and in deciding the case, the First District Court of Appeals noted that while boat owners were not obligated to move their vessels prior to a hurricane, they did “have a duty to take all other reasonable precautions to protect the marina from harm” including properly mooring the boat, removing loose objects and tying down items on the deck that could not be removed.

When Hurricane Ivan was about to hit the Florida Panhandle, BoatU.S. received frantic calls from boat owners who were being told to leave their marinas. One was a liveaboard whose vessel’s draft was too deep for his boat to move up into Pensacola’s shallow bays. His other option was the make a run for Mobile, AL, which could possibly place him in even greater danger, depending upon the hurricane’s unpredictable path. Another boat owner was close to tears as she said her marina had ordered them to leave and they had no place to take their boat.

But many marinas are between a rock and a hard place as well. Hauling boats out is one option but many marinas in Florida have very little storage space since waterfront land is so valuable. Hauling and blocking one boat can take 40 minutes and if the marina has one Travelift and hundreds of boats to move, there usually isn’t enough time.

Worst-Case Scenario

By now, the transient docks are back open at Ft. Pierce City Marina, also a BoatU.S. Cooperating Marina, and new plans for rebuilding the floating docks are being drafted. This 284-slip marina made the front pages of many newspapers after Hurricane Frances as it showed some of the worst devastation imaginable. Some 69 boats were sunk or destroyed when the hurricane took out concrete piers anchoring the floating docks. By the end of October, the wreckage was gone but the financial headaches were just starting. Damage to Ft. Pierce City Marina was estimated to be $10 million.

Marina manager Dean Kubitschek said the marina was self-insured for $6.5 million and when that money is used up, the city of Ft. Pierce can apply to FEMA for public assistance grants given only to municipalities for their disaster-related losses. Even so, Kubitschek believes marinas should have the right to vacate their docks prior to a storm to lessen the damage, if not prevent it.

“When that law was passed in 1994, the weather forecasting was not as good as it is today,” he said. He said some of his marina tenants chose to leave and headed south to Ft. Lauderdale and the Keys or inland to Lake Okeechobee. Their boats survived with no problems, he said. Kubitschek’s own Formosa 40 sank at the marina dock in Frances.

The marina contract states that it is not to be considered a safe harbor during a tropical storm or hurricane, but slipholders were not specifically ordered out. One problem: the marina has no boatyard and no equipment to haul boats out for land storage, although within a few miles several other marinas do.

A Better Plan

After 27 years in the marina business, fifth-generation Floridian Ed Carter has endured more hurricanes than he’d like and is busy rebuilding his devastated Diamond 99 Marina in Melbourne, FL, a BoatU.S. Cooperating Marina. He was so quick making repairs that his main dock, rebuilt right after Hurricane Frances, was re-ruined by Hurricane Jeanne. “I don’t believe in sitting around,” he said. “People need a place to put their boats.”

Diamond 99 employs a well-thought-out hurricane evacuation plan that the marina itself helps boat owners implement, right down to lending extra anchors and “water taxi” rides to and from a sheltered anchorage. Diamond 99 does include language in its slip contract that boats must be moved prior to a hurricane and for Frances all but seven owners out of 75 adhered to the policy.

“We notify everybody in advance and work together as a team, before it gets too bad,” Carter explained. Owners move their vessels two miles across the ICW to the lee of Merritt Island, which affords better protection from a storm coming from the east. The marina helps them set two anchors with chain, plus two extra-long anchor lines. Carter sends some of his workers along with older customers to help them and the marina ferries people back and forth. The evacuation takes two-and-a-half days, Carter said.

Out of the 60-plus boats moved to the anchorage, 12 were totaled during Frances and only two during Jeanne. Of the boats left at the dock, all of them sank, Carter said. Unfortunately, his docks were destroyed by Frances and Jeanne. The storm surge during Frances was 10 feet and Carter said he saw six-foot waves breaking over his docks.

“All of the boats would have been gone if they’d been left at the dock,” he said. “There’s not a doubt in my mind.”

Hurricane repairs will cost Diamond 99 about $200,000 for which Carter has no insurance and disaster relief money from Federal Emergency Management Agency (FEMA) is not available. Carter, like so many businesses in Florida, is applying for a Small Business Association loan but will still have to pay it back. Generally, marinas can only insure their land-based buildings, not docks, because the cost would be prohibitive.

What’s Covered?

The flip side of the eviction issue being debated in Florida is about who should pay for dock damage after a hurricane. Since marinas can rarely afford dock insurance, even if they could get it, the trend has been moving toward collecting from boat owners. BoatU.S. Marine Insurance VP of Claims Carroll Robertson said after each big hurricane she has seen dock contracts contain more and more language holding slipholders responsible for marina damage.

Boat owners with very basic insurance policies have no coverage for claims by a marina based on contractual liabilities, as opposed to the owner’s negligence, and are most likely on the hook to defend themselves, Robertson said. Normally, insurance policies do not cover contractual liability, that is costs the insured could be required to pay as a result of a contract he or she signed. But in “Act of God” catastrophes such as hurricanes, usually each damaged party is responsible for their own damage, either personally or under their insurance.

However, the BoatU.S. yacht policy is more specialized and if an insured’s dock contract contains language holding them responsible for marina damages, they would be defended and any damages decided by a court would be covered up to the limits of the policy. The marina must file suit and prove negligence on the part of the boat owner.

“It’s a heavy burden of proof on the marina to prove that this boat did this particular damage to this dock,” she explained. “Can they show that the boat owner was negligent or did not take reasonable care?”

Robertson spent two months in Florida overseeing hurricane claims processing and said in the Panhandle she saw marinas that were evacuated but still destroyed by Hurricane Ivan. When the I-10 bridge in Pensacola was wrecked by Ivan’s storm surge lifting concrete slabs of highway, it’s unlikely a marina could prove that a small fiberglass boat was the cause of the dock damage, she said.

“In the Panhandle a lot of marinas were trying to persuade owners to leave, but the problem is: where are you going to go?” Robertson said. “If the drawbridges are already locked down due to high wind you have no choice but to stay put.”

A Storm in the State House?

In getting ready for the special legislative session, Marine Industry Association of South Florida President Frank Herhold said in November 0the industry is more interested in measures to have boat owners held responsible for dock damage than in rolling back the 1994 hurricane eviction law.

The current law’s provision that boat owners properly secure their boats prior to a storm “has no teeth,” he said, and there are many instances from the 2004 hurricanes in which boats were left unattended or boat owners tied up to docks not theirs and simply left. As far as filing suit against boat owners to collect damages, he said most marina owners don’t have the resources for that much legal action.

“Some of our members wanted the right to evict boat owners right up until a warning is issued, but we don’t want to go that route,” said Herhold. “Our concern is who pays for what.”

By Elaine Dickinson